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Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2016

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2016

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

SENATE

 

 

 

CRIMINAL CODE AMENDMENT (MISREPRESENTATION OF AGE TO A MINOR) BILL 2016

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

(Circulated by authority of Senators Kakoschke-Moore, Griff, Hinch and Xenophon)

 

 

 

CRIMINAL CODE AMENDMENT (MISREPRESENTATION OF AGE TO A MINOR) BILL 2016

 

OUTLINE

The purpose of this Bill is to make it an offence for a person who is over 18 years of age to misrepresent their age to a person who is, or the person believes them to be, under 16 years of age for the purposes of encouraging a physical meeting, or with the intent of committing an existing offence. For the purposes of this Bill, the age of 16 years has been selected as it is the age of sexual consent in most Australian jurisdictions.

 

The Bill applies to online communications, and is intended to address the situation where adults represent themselves as teenagers or young people in order to encourage a meeting or other illegal activities.

 

Clause 1: Short title

1.         This clause is a formal provision and specifies that the short title of the Bill, once enacted, is cited as the Criminal Code Amendment (Misrepresentation of Age to a Minor) Act 2016 .

 

Clause 2: Commencement

2.         This clause provides for the commencement of the Act on the day after the Act receives the Royal Assent.

 

Clause 3: Object

3.         This clause provides that the object of the Act is to provide protection to minors from adult predatory behaviour in online communications.

 

Clause 4 - Schedules

4.         Each Act specified in a Schedule to this Act is amended or repealed as is set out in the applicable items in the Schedule. Any other item in a Schedule to this Act has affect according to its terms.

Schedule 1 - Amendments

Criminal Code Act 1995

Item 1 - At the end of Division 474 of the Criminal Code

5.         This Item amends the Criminal Code Act 1995 to insert a new Subdivision H - Offences relating to use of carriage service with intention of misrepresenting age at the end of Division 474 of the Criminal Code .

6.         Section 474.40 outlines the circumstances under which an offence is committed. According to these provisions, a person commits an offence when a person over 18 years of age (the sender ) sends an online message to a person who the sender believes to be, or who is, under 16 years of age (the recipient ), misrepresenting their age for either of the purposes outlined in the following subsections:

·          Subsection (1): encouraging the recipient to physically meet the sender, or any other person; or

·          Subsection (2): committing an offence other than the one included in this section.

7.         These subsections include a penalty of imprisonment of 5 years for the first offence and 8 years for the second.

8.         Section 474.41 outlines further provisions relating to the above offences.

·          Subsection (1) states that, for the purposes of prosecuting an offence, evidence that the recipient of a communication was represented to the sender as being under or of a particular age is considered to be proof that the sender believed the recipient to be under or of that age, unless there is evidence to the contrary;

·          Subsection (2) outlines the evidence that may be treated as admissible by a jury or court in relation to a person’s age at a particular time. This includes a person’s appearance, medical or scientific opinion, official or medical records, or copies of those records. This subsection does not limit other kinds of evidence that is admissible and does not affect a prosecutor’s duty to present the best possible evidence ( subsection (3) ). The jury must also be satisfied beyond reasonable doubt in determining the question when evidence is treated as admissible under subsection (3) ( subsection (4) ); and

·          Subsection (5) provides that, for the purposes of the offence outlined under section 474.40 , it does not matter that the recipient of messages is a fictitious person, represented to the sender as a real person. This covers circumstances in which, for example, a police officer or other law enforcement official presents themselves as an underage individual online for the purposes of undercover activities.

9.         Section 474.42 outlines defences against the offences in section 474.40 .

·          Subsection (1) provides that a defendant’s belief that the recipient of a message was not under 16 years of age is considered a defence, although the defendant bears an evidential burden in relation to this matter;

·          Under subsection (2) , the jury must consider whether this belief was reasonable under the circumstances; and

·         Subsection (3) provides an exemption for law enforcement officers or intelligence or security officers acting in the course of their duties, if the conduct of the person is reasonable in the circumstances. The defendant bears an evidential burden under this subsection.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2016

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

This Bill amends the Criminal Code Act 1995 to create a new criminal offence where a person over 18 years of age misrepresents their age in online communications with a person they believe to be under 16 years of age for the purposes of encouraging a physical meeting or committing an offence.

 

Human rights implications

This Bill engages three aspects of human rights: firstly, the rights of people accused of criminal offences, including the right to presumption of innocence, right to a fair trial, and a prohibition on retrospective criminal laws; secondly, the right of people, particularly children, to be protected from exploitation, violence and abuse; and, thirdly, the prohibition of interference with privacy and attacks on reputation.

 

Firstly, this Bill engages the following rights in relation to the justice system:

1.       The right to a fair trial and hearing rights, as contained in article 14 of the International Covenant on Civil and Political Rights (ICCPR);

2.       The right to presumption of innocence, as contained article 14(2) of the ICCPR;

3.       The right to minimum guarantees in criminal proceedings, as contained in article 14(3), (5), (6) and (7) of the ICCPR; and

4.       The prohibition on retrospective criminal laws, as contained in article 15 of the ICCPR.

 

In the first instance, the Bill does not negatively impact on or curtail any of these rights. Sections 474.41 and 474.42 outline the specific provisions and defences in relation to the offence outlined in the Bill, which are consistent with provisions in the existing Act. These sections do not impact on existing laws in relation to the operation of the justice system. The provisions in the Bill are also not retrospective.

 

Secondly, the Bill engages the right of people, particularly children, to be protected from exploitation, violence and abuse, as contained primarily in article 20(2) of the ICCPR, and in article 19(1) of the Convention on the Rights of the Child (CRC).

 

The Bill creates a specific offence aimed at protecting minors from adults who deliberately misrepresent their age for the purpose of arranging a physical meeting or committing another offence. The Bill aims to address situations where adults pretend to be close to the age of a minor with whom they are communicating, so that the minor is more open to communications with that adult. This is a technique known to be used by adults seeking to physically harm minors, where minors have been deceived and become victims of violence and abuse (see R v NEWMAN [2011] SASCFC 36 ). The proposed amendments are appropriate for the purpose of assisting in the protection of children from exploitation, violence and abuse.

 

Thirdly, t his Bill engages the right to privacy, which is contained in article 17 of the ICCPR. The right to privacy is generally understood to prevent unlawful or arbitrary interferences with an individual’s privacy, family, home and correspondence. Access to personal information relevant to the offences in the Bill, such as records of online communications, is subject to existing protections and can only be accessed when it is suspected an offence has been committed. This is in line with established legal protections, and as such is considered a permissible limitation.

 

 

Conclusion

The Bill is compatible with human rights as it does not impact on the existing protections offered by Australia’s justice system, and strengthens the right of minors to be protected from exploitation, violence and abuse. 

 

 

Senators Kakoschke-Moore, Griff, Hinch and Xenophon